BNUMBER: B-278168; B-278168.2
DATE: January 5, 1998
TITLE: Joint Threat Services, B-278168; B-278168.2, January 5, 1998
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DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective
Order. This redacted version has been approved for public release.
Matter of:Joint Threat Services
File: B-278168; B-278168.2
Date:January 5, 1998
Stuart Young, Esq., DynCorp, for the protester.
William L. Walsh, Jr., Esq., J. Scott Hommer, III, Esq., and Wm. Craig
Dubishar, Esq., Venable, Baetjer and Howard, LLP, for Research
Analysis and Maintenance, Inc., an intervenor.
Craig E. Hodge, Esq., and Phillip A. Weaver, Esq., Department of the
Army, for the agency.
Christine F. Davis, Esq., and James A. Spangenberg, Esq., Office of
the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
1. Agency reasonably downgraded the protester's management proposal
and made an upward adjustment in determining the proposal's most
probable cost, where the proposal did not demonstrate the protester's
ability to perform the agency's requirements based upon a
significantly reduced staff during the contract option years, during
which the agency does not anticipate any significant reduction in its
requirements.
2. Agency was not required to discuss the protester's proposal to
augment its staff with personnel from another contract, where the
agency reasonably did not view this weakness as material until the
protester proposed a significant staffing reduction in its best and
final offer and increased its reliance upon this other contract's
personnel to supplement its staff.
3. The excellent rating accorded to the awardee's best and final
offer did not improperly reflect the application of an unstated
evaluation factor and was reasonably based upon numerous, uncontested
proposal strengths, notwithstanding that the awardee's staffing levels
were lower than the government estimate.
4. Agency properly allowed the awardee to correct a clerical error in
a cost proposal spreadsheet after the submission of best and final
offers through clarifications, rather than discussions, where the
existence of the mistake, and the amount actually intended, were clear
from the face of the proposal, and the correction did not prejudice
the interests of another offeror.
DECISION
Joint Threat Services (JTS), a joint venture,[1] protests an award to
Research Analysis and Maintenance, Inc. (RAM) under request for
proposals (RFP) No. DATM01-95-R-0020, issued by the U.S. Army Materiel
Command, Operational Test and Evaluation Command Contracting Activity
(OPTEC), for test support services for OPTEC's Threat Support Activity
(OTSA).
We deny the protest.
The RFP, issued August 16, 1996, required the contractor to maintain
current threat systems equipment and to support operational testing of
the equipment, which encompassed transporting the equipment to the
test site and operating and maintaining it until the test's
completion. To this end, the RFP called for an array of support
services, including engineering and technical services, hardware and
software maintenance services, flight and aviation support services,
logistics and supply support services, and threat analysis and
intelligence support services.
The RFP provided for the award of a cost-plus-fixed-fee contract for a
base year with 4 option years on a best value basis. The RFP sought
separate proposals corresponding to four evaluation factors, listed in
descending order of importance: technical, management, past
performance, and cost (including options). The RFP stated six
technical subfactors of varying importance and four management
subfactors of equal importance, as follows:
Technical
1. Base Support
2. Threat Systems Support
3. Engineering and Technical Support
4. Training Support
5. Test Support
6. Threat Analysis and Intelligence Support
Management
1. Management Approach
2. Resource Allocation
3. Project Experience, Expertise and Personnel
4. Logistics
Each technical and management subfactor contained two or more
sub-subfactors. Proposals were to be evaluated under the technical and
management factors with both numerical scores and adjectival ratings.
Proposed staffing was a component of both the technical and management
evaluation. Each technical subfactor provided for an evaluation of
the offeror's understanding of the work to be performed, which
encompassed consideration of the offeror's proposed staffing, and a
few sub-subfactors were geared toward specific staffing concerns, such
as the adequacy of the offeror's proposed engineering staff and mix.
For the management evaluation, staffing concerns were encompassed by
the Project Experience, Expertise and Personnel subfactor, which
provided for a consideration of the offeror's "[a]bility to organize
and allocate resources," the "[a]vailability of qualified personnel,"
"[p]ersonnel and staffing to include job qualifications," and
"corporate and personnel experience to execute the requirements
specified."
Various RFP enclosures (and an offeror's library) contained work load
data upon which to estimate the government's requirements. As
relevant here, RFP enclosure 5 listed the tests performed for OTSA
from 1992 to 1995. This data reflected virtually continuous testing
during that time frame, based upon an average 28 tests per year.
Enclosure 8, on the other hand, showed OTSA's future test commitments
based upon two schedules, dated March 6 and May 31, 1996,
respectively. The schedules were generated more than a year before
the commencement of the contract base year (October 1, 1997, to
September 30, 1998, as amended) and several years before the contract
option years. The schedules listed only the limited number of test
commitments obtained by OTSA for the option years as of March 6 and
May 31, 1996. For example, neither schedule showed any test
commitments during the final option year (October 1, 2001, to
September 30, 2002, as amended). The RFP referred offerors to
enclosure 5 for "[h]istorical and projected workloads," and advised
that enclosure 8 was "provided for information."
The RFP provided for a cost realism analysis and authorized the
government to adjust offerors' proposed costs to reflect the
government's estimate of the most probable cost (MPC) of performance.
The RFP stated that the cost realism analysis would consider whether
the costs proposed reflected the offeror's understanding of the
requirement, were realistic in relation to the work to be performed,
and were "consistent with the various elements of the technical and
management proposals." The RFP further warned that, "[a]ny
inconsistency, whether real or apparent, between promised performance
and cost should be explained in the proposal," and that failure to do
so might justify the proposal's rejection.
On October 28, 1996, the agency received proposals from RAM and JTS.
The proposals were referred to separate evaluation committees for each
RFP factor, with the following results:
RAM JTS
Technical 89.27--Good 88.04--Good
Management 92.75--Excellent 76.25--Marginal
Combined 90.25--Excellent 84.75--Good
Performance Risk Low Risk Low Risk
Proposed Cost $55 million $57.04 million
Total MPC $55.09 million $57.54 million
In its initial proposal, RAM proposed a level staff of [deleted]
full-time equivalent employees (FTE) per year, and JTS proposed a
staff of [deleted] FTEs during the base year, [deleted] FTEs during
the first option year, and [deleted] FTEs during the remaining option
years. JTS' base year staff included [deleted] pilots, which JTS
proposed to augment during periods of simultaneous operations with
[deleted] pilots stationed at Ft. Rucker, Alabama under a DynCorp
contract.[2]
The source selection evaluation board (SSEB), which summarized the
findings of the technical committee and the management committee,
criticized both proposals because they were understaffed in relation
to the government estimate. The SSEB also criticized JTS' offer to
augment its pilot staff during simultaneous operations with Ft. Rucker
pilots, who would require training to fly threat aircraft, thus
creating a burdensome amount of work and adding to JTS' contract
costs. The SSEB recommended probable cost increases to redress
perceived staffing weaknesses in JTS' and RAM's proposals, but this
recommendation was not adopted by the source selection authority (SSA)
in the initial cost evaluation.
On February 25, 1997, the SSA decided to eliminate JTS' proposal from
the competitive range based upon the disparity in management ratings
and the "expansive cost gap" between the two proposals. In support of
this decision, the SSA cited various weaknesses in JTS' management
proposal, including an allegedly inadequate discussion of the RFP's
physical security requirements "[a]lthough [physical security
requirements were] not an evaluation subfactor in the . . .
solicitation." RAM's proposal, in contrast, was found to have
provided a good discussion of the RFP physical security requirements.
JTS learned of its proposal's rejection on March 10 and filed an
agency-level protest, arguing, among other things, that the rejection
of its proposal based upon physical security considerations violated
the RFP evaluation scheme, which did not state a criterion relating to
physical security. On April 1, OPTEC readmitted JTS' proposal to the
competitive range. The agency did not amend the evaluation scheme to
encompass physical security considerations.
OPTEC conducted oral discussions with both offerors. While the agency
discussed certain staffing concerns with JTS, it did not discuss the
protester's plan to augment its pilot staff with Ft. Rucker pilots.
After oral discussions, the agency requested best and final offers
(BAFO) by May 30.
Both offerors made staffing changes in their BAFOs, which contributed
to a $5.44 million increase in RAM's BAFO costs and a $1.21 million
decrease in JTS' BAFO costs. RAM maintained a level staffing approach
in its BAFO, but added [deleted] more FTEs per year in response to
concerns raised during discussions, bringing RAM's proposed staff to
[deleted] FTEs per year. In contrast, JTS' BAFO altered the staffing
approach used in its initial proposal, which offered relatively level
staffing each contract year; JTS' BAFO cost proposal proposed a
pronounced decline in staffing for the contract option years, offering
[deleted] FTEs for the base year and [deleted] FTEs for the option
years.
During the course of the protest proceedings, the individual
responsible for JTS' initial and BAFO staffing proposals submitted an
affidavit explaining the rationale for the change in JTS' BAFO.
According to the affidavit, JTS, in its initial proposal, assumed that
the option year test schedules appearing at RFP enclosure 8 "reflected
the uncertainty of the operational test process" and were "not
representative of the expected workload." JTS therefore designed its
initial proposal "to cover work levels similar to those experienced in
the past as reflected by the data" provided generally in RFP enclosure
5, which caused its proposal to "be significantly more expensive."
After OPTEC eliminated JTS' proposal from the competitive range,
citing the "expansive cost gap" that weakened its competitive
standing, JTS assumed that its staffing levels were too high and that
it should base its staffing approach "in response to the limited
testing" shown in the option year test schedules appearing at
enclosure 8. JTS states that this assumption was corroborated during
oral discussions when it asked if its staffing approach should account
for a known requirement not listed in the enclosure 8 test schedule,
but added by a recent Memorandum of Understanding (MOU), to which the
SSEB chairman allegedly replied, "You didn't see an MOU in the RFP did
you?" JTS concluded that the government desired a staffing approach
based upon the limited testing shown in enclosure 8, which prompted
JTS to propose a marked decline in its option years staff in its BAFO
cost proposal.
The staffing cuts identified in the protester's BAFO cost proposal
were never mentioned in its technical proposal and were only implied
in its management proposal, notwithstanding that JTS' cost proposal
promised "[a]n in-depth analysis of [the] reduction plan by
department" in JTS' management proposal. In the management and
technical proposals, JTS included an organizational staffing chart
that proposed [deleted] FTEs, without discriminating between the base
and option years. In the narrative portion of its management
proposal, JTS alluded to the option year staffing cuts, as illustrated
by the following passage entitled "Outyear Staffing":
When there are no scheduled test or training support requirements
over an extended period, we will adjust airborne systems staffing
to the sustainment level of [deleted] personnel.[3] To meet a
[deleted] person test requirement, we will draw on [deleted]
personnel from Fort Rucker ([deleted] pilots and [deleted]
aviation mechanics . . . ). To meet a [deleted] person
requirement for simultaneous operations, we will draw on
[deleted] Fort Rucker personnel ([deleted] pilots and [deleted]
aviation mechanics . . . ). [4]
As indicated above, JTS' BAFO proposal altered its approach to the use
of Ft. Rucker pilots. In its initial proposal, JTS proposed to
augment a [deleted]-person pilot staff with [deleted] Ft. Rucker
pilots only during simultaneous operations, whereas JTS' BAFO proposed
for the option years to augment a [deleted]-person pilot staff with
[deleted] Ft. Rucker pilots during simultaneous operations as well as
during normal testing functions.
Following the BAFO evaluation, JTS' and RAM's proposals were rated as
follows:
RAM JTS
Technical 90.58--Excellent 88.40--Good
Management 93.50--Excellent 78.50--Marginal
Combined 91.40--Excellent 85.65--Good
Performance Risk Low Risk Low Risk
Proposed Cost $60.44 million $55.83 million
Total MPC $62.22 million $62.61 million
Because the protester did not mention its option year staffing cuts in
its technical proposal, JTS' "good" technical rating reflected an
assumption that JTS' staff included [deleted] FTEs throughout the
contract period. The management evaluators, on the other hand, were
aware that JTS proposed staffing reductions "[w]hen there are no
scheduled test or training support requirements over an extended
period" during the contract option years. This approach was viewed
unfavorably by the management committee and contributed to the
"marginal" rating accorded JTS' management proposal, despite
improvements made in other areas of the proposal during discussions.
The SSEB described JTS' approach to implementing staffing reductions
in the option years as "flawed, unrealistic and risky." The SSEB
found that JTS' proposed option years staff was seriously understated
in relation to the current incumbent staff (supplied, in part, by
DynCorp), which, in the SSEB's opinion, evidenced JTS' "total lack of
understanding for the basic RFP requirements." The SSEB faulted JTS'
BAFO for not providing an "in-depth analysis," as promised in its cost
proposal, establishing how JTS could perform the contract based upon
the staffing reductions, including the reduction of personnel
described in JTS' proposal as "critical to the work performed on this
contract," such as pilots. In that regard, the SSEB also remarked
that JTS' proposal to augment its pilot staff with Ft. Rucker pilots
was of concern to the agency because there were "hidden costs"
associated with training those pilots to operate threat aircraft and
because there was no assurance that DynCorp could gain government
approval to excuse these pilots from their other contract duties.
Finally, the SSEB commented that JTS, by obscuring its intention to
offer [deleted] FTEs throughout the option years in its technical and
management proposals, "appears to have layered their BAFO and played a
cat and mouse game by not fully disclosing the quantity and types of
personnel to be reduced from the base year to the option years which
include key and critical positions."
The SSA adopted the SSEB's technical and management ratings. With
regard to the cost realism analysis, the SSA rejected the
recommendation of the SSEB chairman that the staffing levels in both
proposals be normalized to the higher government estimate to redress
perceived staffing shortages, finding that the evaluation process had
not substantiated the need for such an adjustment and that each
offeror's proposed staffing, not the government estimate, should serve
as the basis for probable cost adjustments.
However, in determining the MPC of JTS' BAFO, the SSA decided to add
the costs of the personnel cut by JTS during the option years.
Because JTS failed to identify the staffing cuts in its technical
proposal, and the technical committee evaluated the merit of JTS'
technical approach assuming a constant [deleted] FTE staffing level,
the SSA reasoned that JTS' probable cost should also reflect [deleted]
FTEs "[i]n order to maintain the integrity of the evaluations for
scored areas." In addition, while JTS mentioned the staffing
reductions in its management proposal, the SSA noted that the
management committee did not believe that JTS had substantiated its
ability to perform the option years of the contract with the truncated
staff, absent "too much risk to mission," leading the SSA to conclude
that the proposed option years staffing levels were unrealistic and
should be adjusted upward. As a separate matter, the SSA made a $1.1
million upward adjustment to reflect the probable cost of training the
Ft. Rucker pilots to fly threat aircraft under the instant contract.
The above adjustments, plus another $2.1 million adjustment unrelated
to the issues in this protest, elevated the protester's evaluated cost
by $6.78 million from its proposed cost.
RAM's evaluated cost was $1.78 million more than its proposal cost.
Of this amount, $[deleted] represented the correction of an error in
the cost proposal of one of the awardee's subcontractors. The error
was the subject of post-BAFO communications between RAM and the
contract specialist, and the awardee provided a written response
reflecting the $[deleted] error, which was "utilized in the
evaluation" of RAM's probable cost.
After the probable cost adjustments were made, RAM's higher-rated
proposal enjoyed an evaluated $390,000 cost advantage. As a result,
the SSA determined that RAM's proposal represented the best value to
the government. This protest followed.
THE STAFFING EVALUATION
JTS protests that the agency misevaluated its staffing approach under
both the cost and management factors. JTS argues that the RFP
required the agency to evaluate staffing based upon the test schedules
appearing at enclosure 8, which showed a substantial reduction in the
test requirements for the option years and which dictated the staffing
approach in its BAFO. The protester claims that, instead, OPTEC
improperly evaluated its staffing approach based upon the historical
requirements shown at enclosure 5. JTS therefore protests the
agency's evaluation of its management proposal as "marginal" and the
agency's decision to add the cost of the personnel cut during the
option years to its proposal's MPC.
The evaluation of proposals is a matter within the discretion of the
contracting agency. Our Office will question the agency's evaluation
only where it lacks a reasonable basis or conflicts with the stated
evaluation criteria for award. SC&A, Inc., B-270160.2, Apr. 10, 1996,
96-1 CPD 197 at 7. Further, when an agency evaluates proposals for
the award of a cost reimbursement contract, an offeror's proposed
estimated costs are not dispositive because regardless of the costs
proposed, the government is bound to pay the contractor its actual and
allowable costs. Federal Acquisition Regulation (FAR) sec. 15.605(c)
(June 1997). Consequently, a cost realism analysis must be performed
by the agency to determine the extent to which an offeror's proposed
costs represent what the contract should cost, assuming reasonable
economy and efficiency, and we limit our review in these matters to
determining whether the agency's cost evaluation was reasonably based
and not arbitrary. CACI, Inc.-Fed., 64 Comp. Gen. 71, 75 (1984), 84-2
CPD para. 542 at 5; Geo-Centers, Inc., B-276033, May 5, 1997, 97-1 CPD para.
182 at 9.
We do not agree with JTS that the enclosure 8 test schedules were to
serve as the basis for the agency's cost realism analysis or its
management evaluation. Although JTS asserts that the RFP required
staffing to be evaluated against the enclosure 8 test schedules, JTS
has not identified, nor can we find, any RFP provision which indicated
such an approach; for example, the enclosure 8 schedules were never
mentioned in the RFP evaluation scheme or the performance work
statement.[5] Based upon our review, we agree with the agency that
the evaluation scheme contemplated an evaluation of the offeror's
ability "to execute the technical requirements" as stated in the RFP
as a whole, not simply as stated in enclosure 8.[6]
Here, the agency does not expect any precipitous decline in its
testing requirements between the base and option years of the instant
contract, but anticipates that the requirements under the instant
contract will follow the historical patterns reflected in enclosure 5,
which reveals continuous, often overlapping, testing requirements.
Indeed, the technical committee, unaware of the proposed option year
staffing reductions, rated JTS' technical proposal as "good," based,
in part, upon the belief that JTS' ostensibly level staffing approach
would satisfy comparable base and option year requirements. JTS has
not established, either in its proposal or during this protest, that
it can satisfy the continuous testing requirements anticipated by
OPTEC for the base and option years based upon a truncated staff of
[deleted] FTEs. To the contrary, JTS' staffing reductions presuppose
that minimal testing will be required during the option years; for
instance, to the extent that testing is required, JTS offered to
augment its staff by drawing on personnel from an unrelated DynCorp
contract at Ft. Rucker. Furthermore, the affidavit submitted by the
individual who prepared JTS' initial and BAFO staffing proposals
essentially confirms that JTS cannot perform the contract with
[deleted] FTEs unless the enclosure 8 testing schedules "prove[] to be
an accurate portrayal of the actual test work load," which the
government does not expect to be the case.
Based upon our review, the agency reasonably found that JTS' proposal
to perform the option years requirements with [deleted] FTEs was
unrealistic, both from a management and cost perspective, particularly
since JTS' technical proposal was facially premised on a level
[deleted] FTE approach. Because JTS failed to present the promised
"in-depth analysis" substantiating its ability to perform successive
testing requirements with fewer than [deleted] FTEs per year, we find
reasonable the SSEB's conclusion that the proposed option years
staffing reductions were "flawed, unrealistic and risky" and the SSA's
conclusion that a staff of [deleted] FTEs represented JTS' MPC of
performing the contract. In addition, JTS' failure to disclose the
proposed staffing reductions in its technical proposal undermined its
proposal's "good" technical rating.
ALLEGED INADEQUATE DISCUSSIONS
The protester argues that OPTEC should have discussed JTS' proposed
use of Ft. Rucker pilots to augment its staff since OPTEC viewed this
as a weakness in JTS' initial proposal. Had the agency raised this
issue during discussions, JTS argues, it could have avoided the
downgrade to its management proposal and the adjustment to its MPC
stemming from the proposed use of the Ft. Rucker pilots.
We review the adequacy of discussions to ensure that agencies point
out weaknesses that, unless corrected, would prevent an offeror from
having a reasonable chance for award. Department of the Navy--Recon.,
72 Comp. Gen. 221, 222 (1993), 93-1 CPD para. 422 at 3. An agency is not
required to afford offerors all-encompassing discussions, nor is it
required to discuss every aspect of an offeror's proposal that
receives less than the maximum score. Volmar Constr. Inc., B-270364,
B-270364.2, Mar. 4, 1996, 96-1 CPD para. 139 at 4; DAE Corp., B-259866,
B-259866.2, May 8, 1995, 95-2 CPD para. 12 at 4-5. In addition, an agency
is not obligated to reopen negotiations so that an offeror may remedy
defects first introduced in its BAFO, since the offeror assumes the
risk that changes in its final offer might raise questions about its
ability to meet the solicitation requirements. Cubic Field Servs.,
Inc., B-247780, June 17, 1992, 92-1 CPD para. 525 at 6 n.10.
While the record confirms that the agency considered the proposed use
of Ft. Rucker pilots an undesirable feature in the protester's initial
proposal, the agency reports that it did not discuss the issue because
JTS initially proposed a large enough pilot staff (i.e., [deleted]
pilots) that the agency doubted that JTS would require pilot support
from Ft. Rucker. This assumption changed when the protester seriously
diminished its proposed pilot staff in its BAFO, which made it
probable that JTS would rely upon the Ft. Rucker pilots and that the
agency would incur the training costs and inefficiencies associated
with that approach.
JTS has provided no basis to object to OPTEC's evaluation of its
proposed use of the Ft. Rucker pilots, which we find to be supported
by the record. As noted above, JTS, in its initial proposal, proposed
to augment a [deleted]-person pilot staff with [deleted] Ft. Rucker
pilots only during the simultaneous operations scenario, but not
during the normal testing requirements that JTS admits "constitute the
bulk of the day to day requirements in this procurement." Because the
[deleted]-person pilot staff was deemed adequate for the performance
of most contract requirements, the agency did not view the possible
sporadic use of Ft. Rucker pilots as a material weakness in JTS'
proposal, as evidenced by the fact that the agency made no MPC
adjustments based upon this approach during the initial cost
evaluation and did not mention it in the letter rejecting JTS' initial
proposal from the competitive range.
In its BAFO, JTS proposed in the option years to augment a
[deleted]-person pilot staff with [deleted] Ft. Rucker pilots not only
during simultaneous operations, but also to accomplish the day-to-day
testing requirements. These BAFO changes led the agency to conclude
that it would likely endure what it viewed as an inefficient and
expensive approach to meeting its day-to-day testing requirements.
Because the proposed use of Ft. Rucker pilots was not a material
weakness until the staffing changes introduced in JTS' BAFO, the
agency was not obliged to conduct discussions on this issue.
ALLEGED MISEVALUATION OF THE AWARDEE'S MANAGEMENT PROPOSAL
The protester argues that RAM's management proposal did not deserve an
"excellent" rating because the SSEB considered RAM's proposal (as well
as JTS') to be understaffed in relation to the government estimate.
Although the SSEB considered RAM's proposal understaffed in relation
to the government estimate, this weakness was outweighed by numerous,
uncontested strengths in the proposal, including strengths in the
staffing area, such as an excellent employee compensation and
recruitment plan, an excellent discussion of key personnel
qualifications, an excellent approach to staffing during simultaneous
operations, the provision of a highly skilled staff, and sufficient
personnel to support the required tasks despite "an apparent
understaffing of maintenance personnel." In addition, RAM added more
technicians and maintenance personnel in response to concerns raised
during discussions, which somewhat alleviated the SSEB's concern.
Finally, the SSA disagreed with the SSEB that the evaluation of RAM's
proposal disclosed a staffing shortfall sufficient to justify
normalization of the staffing to the government estimate. The
protester has not established that the SSA abused her discretion in
this regard, particularly given that the protester proposed less staff
than RAM during the base year and, more significantly, during the
option years.
The protester also argues that RAM's "excellent" management rating is
inflated because RAM's proposal was given credit for an excellent
physical security discussion, which was not encompassed by the RFP
evaluation criteria. The record does not support the protester's
contention. There is no mention of security issues in the SSEB's BAFO
evaluation summary report or the source selection decision, and only
an isolated reference in an individual evaluator's BAFO worksheet,
which lists RAM's physical security approach as a proposal
disadvantage. Although the agency rewarded RAM's initial proposal for
its physical security approach, we decline to infer that it so
rewarded RAM's BAFO proposal simply because RAM's BAFO score was not
decreased from its initial proposal score. As the record
demonstrates, RAM improved its proposal in several, properly evaluated
areas after discussions, which accounts for its slightly higher BAFO
score.
ALLEGED IMPROPER POST-BAFO DISCUSSIONS
JTS protests that OPTEC engaged in post-BAFO discussions with RAM and
allowed the awardee to revise its proposal, an opportunity denied JTS.
Discussions occur when an offeror is given an opportunity to revise or
modify its proposal, or when information requested from and provided
by an offeror is essential for determining the acceptability of its
proposal. FAR sec. 15.601 (June 1997); Microlog Corp., B-237486, Feb.
26, 1990, 90-1 CPD para. 227 at 4. The conduct of discussions with one
offeror generally requires that discussions be conducted with all
offerors whose offers are within the competitive range and that the
offerors have an opportunity to submit revised offers. Id.
Discussions are to be distinguished from clarifications, which are
merely inquiries for the purpose of eliminating minor uncertainties or
irregularities in a proposal. Id. Contracting officers have an
affirmative obligation to examine proposals for minor informalities
and irregularities and apparent clerical mistakes, which may be
corrected through clarifications, rather than discussions. FAR sec.
15.607(a) (June 1997). Communications with offerors to resolve
clerical mistakes are clarifications and not discussions, so long as
they do not prejudice the interests of the other offerors. Faison
Office Prods. Co., B-260259, B-260259.2, June 2, 1995, 95-2 CPD para. 116
at 5.
In the instant case, the contract specialist asked RAM to confirm
whether a subcontractor spreadsheet contained a programming error,
which had the effect of excluding a liability insurance line item from
the subcontractor's base and option year costs. RAM confirmed that
the spreadsheet formula inadvertently excluded liability insurance
costs from the subcontractor's proposal costs. RAM advised that the
correction of the error would add $[deleted] to its BAFO cost
proposal. We have reviewed the subcontractor spreadsheets, and we
find that both the existence of the mistake and the amount actually
intended were clear from the face of the spreadsheets and were as
reported by RAM; specifically, the base and option year spreadsheets
exclude $[deleted] in liability insurance and $[deleted] in derivative
profit, resulting in an overall error of $[deleted] for the entire
contract period. See FAR sec. 15.607; E. Frye Enters., Inc., B-258699,
B-258699.2, Feb. 13, 1995, 95-1 CPD para. 64 at 2. Further, the
correction of the error did not prejudice JTS, since it had the effect
of raising, not lowering, RAM's evaluated cost. Thus, we agree with
OPTEC that the spreadsheet discrepancy was a clerical error
correctable through clarifications.[7]
OTHER ISSUES
The protester alleges that the agency misevaluated its approach to
purchasing foreign parts under the Logistics subfactor and applied an
unstated, physical security evaluation factor in downgrading its
proposal under the Management Approach subfactor. We need not address
these issues because, even if JTS' proposal had earned perfect scores
under these subfactors, the combined technical/management score of its
higher-cost proposal would have been 88.80 points, less than RAM's
score of 91.40 points. Competitive prejudice is an essential element
of every viable protest. Lithos Restoration Ltd., 71 Comp. Gen. 367,
371 (1992), 92-1 CPD para. 379 at 5. Where the record does not
demonstrate that, but for the agency's actions, the protester would
have had a reasonable chance of receiving the award, our Office will
not sustain a protest, even if a deficiency in the procurement is
found. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3;
see Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir.
1996). In any event, there is no evidence in the SSEB BAFO analysis
report or the source selection statement that the protested weaknesses
were proposal discriminators, as was the protester's proposed staffing
approach.
JTS also protests the agency's cost/technical tradeoff as "cursory"
and inadequately documented. There was no requirement for a
cost/technical tradeoff in this case, because the awardee offered the
technically superior proposal at a lower probable cost based upon a
proper evaluation. See Hughes Missile Sys. Co., B-259255.4, May 12,
1995, 95-1 CPD para. 283 at 16. Further, JTS is wrong that the agency's
cost/technical tradeoff should have been based upon proposed costs.
The RFP clearly provided that each proposal's probable cost would
serve as the basis for the award selection, and, as explained above,
there was no error with respect to the probable cost adjustments made
to JTS' proposal.
Finally, JTS contends that the agency made a mathematical error in
computing its BAFO's MPC. JTS received the documentation necessary to
raise this allegation on October 17, but did not protest until filing
its comments on November 20, which renders the allegation untimely and
not for our consideration. 4 C.F.R. sec. 21.2(a)(2) (1997).[8]
The protest is denied.
Comptroller General
of the Untied States
1. JTS' joint venture partners are Electronic Warfare Associates,
Nichols Research Corporation, and DynCorp. A different joint venture,
which also includes DynCorp as a partner, serves as the incumbent
contractor for most of the services covered by the instant
solicitation.
2. RFP enclosure 5 listed a number of threat systems that the offeror
might be required to operate simultaneously during periods of peak or
surge requirements.
3. JTS used the term "sustainment level" to refer to periods when
there is no scheduled testing and the contractor is simply required to
maintain the equipment.
4. JTS also proposed to detail staff from other JTS departments to
support the testing and simultaneous operations requirements, e.g.:
"To meet a [deleted] person test requirement, we will draw on
[deleted] personnel from the Engineering Department . . . ."
5. If anything, the proposal preparation instructions reasonably
indicated that offerors should depend upon historical data as the
basis for projecting the government's requirements: "Historical and
projected workloads are given at enclosure 5." Similarly, the
performance work statement refers to work load data included in other
RFP enclosures, such as enclosure 5, but not enclosure 8.
6. We are unpersuaded by the protester's argument that it was
essentially advised during discussions to base its proposed staffing
approach on the enclosure 8 test schedules. As noted above, the SSEB
chairman allegedly discouraged the protester from developing its
staffing approach based upon a known requirement not listed on the
enclosure 8 test schedules because the MOU adding the new requirement
was not part of the RFP. We do not view this advice, even if given,
as a mandate that JTS base its staffing estimates on the enclosure 8
schedules to the exclusion of other work load data in the RFP, such as
the enclosure 5 historical data. Rather, JTS was advised to develop a
staffing approach based upon the requirements as stated in the RFP,
which included the historical data that JTS essentially disregarded in
developing its option years staffing approach. In our view, JTS
unreasonably interpreted the advice in a manner inconsistent with the
RFP requirements. See Analytical & Research Tech., Inc., B-276064,
May 7, 1997, 97-1 CPD para. 200 at 7-8; Nova Research Co., B-270092,
B-270092.2, Feb. 8, 1996, 96-1 CPD para. 52 at 5. In any case, it is
notable that JTS did not state in its proposal that its staffing plan
was based on the enclosure 8 schedules.
7. JTS also characterizes as discussions the contract specialist's
request that RAM "[p]rovide page citations" showing where
subcontractor costs were incorporated into its BAFO. There is no
merit to this contention. RAM identified the appropriate pages
without revising its proposal, and the information necessary to judge
the acceptability of RAM's proposal was readily ascertainable from the
pages themselves and was not supplied by RAM during the post-BAFO
communication.
8. We also do not consider several protest contentions that were
abandoned after the agency addressed them in its report.